Department of Agriculture

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1 Friday, July 25, 2008 Part III Department of Agriculture Forest Service 36 CFR Part 294 Special Areas; Roadless Area Conservation; Applicability to the National Forests in Colorado; Proposed Rule VerDate Aug<31> :12 Jul 24, 2008 Jkt PO Frm Fmt 4717 Sfmt 4717 E:\FR\FM\25JYP3.SGM 25JYP3

2 43544 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 294 RIN 0596 AC74 Special Areas; Roadless Area Conservation; Applicability to the National Forests in Colorado AGENCY: Forest Service, USDA Forest Service. ACTION: Notice of proposed rulemaking; request for comment. SUMMARY: The Forest Service, U.S. Department of Agriculture (USDA), is proposing to establish a State-specific rule to provide management direction for conserving Colorado roadless areas. The USDA invites written comments on both the proposed rule and the draft environmental impact statement (DEIS) and will consider those comments in developing a final rule and final environmental impact statement (FEIS). The final rule will be published in the Federal Register. DATES: Comments must be received in writing 90 days from the date the rule is published in the Federal Register. ADDRESSES: Comments may be sent via to COcomments@fsroadless.org. Comments also may be submitted via the internet at Written comments concerning this notice should be addressed to Roadless Area Conservation Colorado, P.O. Box , Sacramento, CA , or via facsimile to All comments, including names and addresses, when provided, are placed in the record and are available for public inspection and copying. A copy of this proposed rule, draft environmental impact statement (DEIS), the DEIS summary, dates and locations of public meetings, and other information related to this rulemaking will be available at the national roadless Web site Reviewers may request printed copies or compact disks of the DEIS and the summary by writing to Colorado Roadless Team/Planning, USDA Forest Service, Rocky Mountain Regional Office, 740 Simms Street, Golden, CO , or by to commentsrocky-mountain-regionaloffice@fs.fed.us, or by Fax to When ordering, requesters must specify their address, if they wish to receive the summary or full set of documents, and if the material should be provided in print or compact disk. Printed copies will be available for public viewing at Forest Service district and supervisor s offices within the State of Colorado. FOR FURTHER INFORMATION CONTACT: Colorado Roadless Rule Team Leader Kathy Kurtz at (303) Individuals using telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at between 8 a.m. and 8 p.m. Eastern Standard Time, Monday through Friday. SUPPLEMENTARY INFORMATION: Background As a leader in natural resource conservation, the Forest Service provides direction for the management and use of the Nation s forests, rangeland, and aquatic ecosystems under its jurisdiction. Similarly, the State of Colorado is committed to sustained natural resource use and conservation of State and Federal land within its borders. Furthermore, the Forest Service is charged to collaborate cooperatively with states and other interested parties regarding the use and management of the National Forest System (NFS). State of Colorado Petition On July 14, 2005, the State of Colorado announced it would submit a petition requesting specific regulatory protections for the inventoried roadless areas within the State. The State s commitment to participate was evidenced by Senate Bill , the Roadless Areas Review Task Force legislation signed into law on June 8, The bill outlined membership and responsibilities of a 13-member bipartisan task force to make recommendations to the Governor regarding inventoried roadless areas in NFS lands in Colorado. The task force held nine public meetings throughout the State, reviewed over 40,000 public comments, and conducted a comprehensive review of Colorado s 4.4 million acres of roadless areas (2001 Roadless Rule). Colorado s petition (2006 petition) was submitted to the Secretary of Agriculture for consideration on November 13, 2006, by then-governor Owens with the provision it be considered under section 553(e) of the Administrative Procedure Act and USDA regulations at 7 CFR On April 11, 2007, Governor Ritter resubmitted the 2006 petition with a substantive letter of transmittal, which became the 2007 petition. Governor Ritter s transmittal letter requested that state-specific rulemaking be undertaken to provide an insurance policy for VerDate Aug<31> :23 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\25JYP3.SGM 25JYP3 protection of our roadless areas, given ongoing legal uncertainty. The 2007 petition took into account State and local resource management challenges along with the national interest in maintaining roadless characteristics and the need for management flexibility in certain circumstances. The Roadless Area Conservation National Advisory Committee (RACNAC) reviewed the 2007 petition on June 13 and 14, 2007, in Washington, DC. Harris Sherman, executive director of the Colorado Department of Natural Resources, representing Governor Ritter, described the scope and intent of the 2007 petition. The RACNAC also heard comments from other State and Forest Service officials, task force members, and members of the public. On August 8, 2007, the RACNAC issued a unanimous consensus-based recommendation to the Secretary to direct the Forest Service, with the State of Colorado as a cooperating agency, to proceed with rulemaking based on the 2007 petition. After reviewing the RACNAC s recommendation, the Secretary accepted the 2007 petition on August 24, 2007, and directed the Forest Service to initiate rulemaking based on the petition. The proposed rule would respond to the 2007 petition by establishing a system of Colorado Roadless Areas (CRAs) with protections for these areas that would supersede the 2001 Roadless Rule. The USDA, State, and Forest Service are committed to conserving and managing roadless areas and consider these areas an important and exceptional component of the NFS. The USDA, State, and Forest Service believe the most viable path for lasting conservation of these areas is through properly integrating local, State, and national perspectives on roadless area management on NFS lands located within the State of Colorado. Through a memorandum of understanding dated January 8, 2008, the State of Colorado was granted cooperating agency status with the Forest Service, under 40 CFR , for the preparation of the environmental impact statement (EIS) associated with this rulemaking. Within the 2007 petition, the State requested the Colorado Department of Natural Resources and/or the Colorado Division of Wildlife be offered cooperating agency status to assure participation in the evaluation of future proposed activities in CRAs associated with Federal coal reserves under certain lands in the North Fork coal mining area on the Grand Mesa, Uncompahgre, and Gunnison National Forests, and

3 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules proposed activities associated with ski area lands proposed for removal from roadless designation, listed in Table 2. In addition, the Forest Service will offer cooperating agency status to the State where it expresses an interest for any Forest Service project or planning activity on NFS lands located within CRAs, pursuant to the Council on Environmental Quality implementing National Environmental Policy Act (NEPA) regulations at 40 CFR Where the Forest Service does not have the authority to grant cooperating agency status, the Forest Service will coordinate with the State. National Forest System Land Inventories in Colorado The 2007 petition proposed using the 2001 Roadless Rule inventoried roadless areas as a basis for identifying CRAs. These inventories would be updated by technical corrections to the inventory, such as but not limited to, congressionally-designated areas as defined in Table 3, land exchanges, and any boundary line revisions including additions and deletions to the inventory through revised forest plans (Arapaho and Roosevelt, Routt, Rio Grande and White River National Forests) and ongoing forest plan revisions (Grand Mesa, Uncompahgre, and Gunnison; San Juan; Pike and San Isabel; and Manti-La Sal National Forests). Finally, the 2007 petition identified that certain portions of ski areas (described in Table 2) were not to be included in CRAs. Table 1 displays the acreage changes between the 2001 inventoried roadless areas (IRAs) and the proposed CRA boundaries. TABLE 1. NET CHANGE IN ROADLESS ACRES DESIGNATIONS BY FOREST INVENTORIED ROADLESS AREA ACRES TO COLORADO ROADLESS AREA ACRES 2001 Rule total IRA acres 1 Congressionally designated as wilderness or special areas 2 not included in IRAs or CRAs Total IRA acres without congressionally designated acres IRA acres not included within CRAs Unroaded acres added to CRAs Total roadless acres in CRAs Net change between IRA and CRA acres Arapaho-Roosevelt ,000 (1997) GMUG... 1,127,000 (1979) Pike-San Isabel ,000 (1979) Rio Grande ,000 (1996) Routt ,000 (1998) San Juan ,000 (1979) White River ,000 (2002) Manti La Sal in Colorado... 11,000 (1979) (37,000) 354,000 (5,000) 1, ,000 (4,000) (67,000) 1,060,000 (329,000) 120, ,000 (2005 draft) (207,000) (19,000) 669,000 (77,000) 82, ,000 5,000 (2006 draft) 530,000 (16,000) 4, ,000 (12,000) 442,000 (10,000) 2, ,000 (8,000) (60,000) 544,000 (84,000) 99, ,000 14,000 (2006 draft) 640,000 (5,000) 1, ,000 (4,000) 11,000 (4,000) 500 8,000 (2006 draft) (3,000) Total State of Colorado... 4,433,000 (184,000) 4,249,000 (529,000) 309,000 4,031,000 (218,000) Acres may not add due to rounding (ref. DEIS). 1 The 2001 Roadless Rule used inventoried roadless areas from forest plans that were in effect at the time the 2001 Rule was developed, or a roadless inventory that had undergone public involvement. The date of each forest s inventory used for the 2001 Rule is shown here. Acreages are from the 2001 Roadless Rule FEIS. 2 This column includes acres for the James Peak and Spanish Peak Wildernesses and additions to the Indian Peaks Wilderness, and Bowen Gulch and James Peak Protection Areas, Roubideau and Tabeguache Special Areas, Fossil Ridge Recreation Management Area, and the Piedra Special Management Unit all designated by Congress but not excluded from the 2001 RACR inventory. 3 Acres not included are those identified as substantially altered, mapping errors, updated GIS technology, land exchanges, and ski area acres. TABLE 2. SKI AREA ACRES IN 2001 IRAS OR FOREST PLAN INVENTORIES NOT INCLUDED IN CRAS PER 2007 PETITION National Forest ski areas Colorado roadless area(s) Ski area permitted acres Additional ski area allocation 1 acres Total ski acres not included in CRAs Arapaho-Roosevelt National Forest Loveland... Bard Creek, Mount Sniktau... 1,370 1,620 2,990 Grand Mesa, Uncompahgre, and Gunnison National Forest Crested Butte... Gothic Pike-San Isabel National Forest Ski Cooper... Mad Creek DB & DB VerDate Aug<31> :23 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\25JYP3.SGM 25JYP3

4 43546 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules TABLE 2. SKI AREA ACRES IN 2001 IRAS OR FOREST PLAN INVENTORIES NOT INCLUDED IN CRAS PER 2007 PETITION Continued National Forest ski areas Colorado roadless area(s) Ski area permitted acres Additional ski area allocation 1 acres Total ski acres not included in CRAs Routt National Forest Steamboat Springs... Long Park San Juan National Forest (Draft Revised Forest Plan) Durango Mountain Resort... San Miguel White River National Forest Arapahoe Basin... Porcupine Peak... 1, ,050 Aspen Mt... McFarlane Beaver Creek... Meadow Mountain A & B Breckenridge... Tenmile Buttermilk... Burnt Mountain Copper Mountain... Ptarmigan Hill Snowmass... Burnt Mountain Vail... Game Creek Total ,500 1,700 8,200 Ski area acres rounded to nearest 10 acres and total acres rounded to nearest 100 acres. Totals may not add due to rounding. Ski areas on National Forest System lands in the State of Colorado that are not listed here do not contain roadless acres within their permit or allocation boundary. 1 Acres allocated in forest plans to ski area management that adjoin currently operating ski areas but are not within the current permitted area. 2 Expansion of Durango Mountain Resort is included within the San Juan s forest plan revision, draft preferred alternative. There are 90 acres of roadless area to be excluded from the CRA inventory. TABLE 3. CONGRESSIONALLY DESIGNATED ACRES INCLUDED IN 2001 IRAS AND NOT INCLUDED IN CRAS Congressional designations National Forest Acres within roadless areas Bowen Gulch Protection Area... Arapaho-Roosevelt... 8,600 Indian Peaks Wilderness additions... Arapaho-Roosevelt... 3,000 James Peak Protection Area... Arapaho-Roosevelt... 11,300 James Peak Wilderness... Arapaho-Roosevelt... 14,300 Fossil Ridge Recreation Management Area... Grand Mesa, Uncompahgre, and Gunnison... 39,800 Roubideau Area... Grand Mesa, Uncompahgre, and Gunnison... 18,600 Tabeguache Area... Grand Mesa, Uncompahgre, and Gunnison... 8,900 Spanish Peak Wilderness... Pike-San Isabel... 18,700 Piedra Special Management Unit... San Juan... 60,400 Total ,000 Using these inventories, the Forest Service has identified million acres of roadless areas that would be subject to this proposed rule. This rule, if finalized as proposed, would establish CRA maps defining the boundaries of these areas and would be maintained at the national headquarters office of the Forest Service as provided in section of this rule. These maps and acreages may be modified with additions or deletions to boundary lines only as outlined in section Acres not included in the CRAs that were within the boundaries of the 2001 Roadless Rule IRAs would not be subject to the 2001 Roadless Rule and would be managed under their respective forest plan direction as provided in section (i). Proposed Roadless Area Conservation Rule for Colorado The USDA, State, and Forest Service believe this proposed rule for Colorado represents a unique opportunity to collaboratively manage and protect roadless areas within the State of Colorado. The petitioning process and the proposed rule enables the Forest Service to consider the comments of people most affected by or concerned about the contents of state-specific rulemaking for roadless areas across the State in balance with national concerns for these areas. The proposed rule represents a balanced solution for retaining the integrity and natural beauty of Colorado s roadless areas while maintaining management VerDate Aug<31> :23 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\25JYP3.SGM 25JYP3 flexibility to affect future changes where needed. The Forest Service, in cooperation with the State, has completed a review of the social, economic, and environmental characteristics and values associated with the IRAs in Colorado. With public input, the Forest Service has considered the question of how these roadless lands should be managed within the scope of the Forest Service s authority. The management direction proposed by these regulations would take precedence over any inconsistent regulatory provision or land management plan but would not supersede valid existing rights. All forests must meet the requirements of the proposed rule, regardless of their forest plan guidance. However, the

5 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules proposed rule at sections and does allow restrictions from forest plans to apply if they are more stringent than the proposed rule. Forest plans are revised at approximately 15- year intervals and are amended as needed. A revision or amendment could result in more restrictive direction for an individual CRA, but any forest plan direction with less restrictive direction, would have no force or effect (sec (d)). Ski Areas The State of Colorado s petition requested the Forest Service not include within CRAs, certain acres that are within the 2001 IRAs and allocated in forest plans to a ski-based management area prescription. This includes acres that are currently within the ski area permitted boundaries (6,500 acres) as well as acres that have been allocated in forest plans (current or draft, 1,700 acres) to a ski-based management area prescription that are not currently within the permitted areas but directly adjoin current operating ski areas. A list of the acres not included in the CRAs by ski area can be found in Table 2. The combined 8,200 ski area acres that are not proposed for CRA designation would remain subject to their respective forest plan direction and applicable terms and conditions of special use authorizations. Any proposal for these ski area acres, including expanding a ski area permit boundary into an area allocated to a skibased management prescription would be subject to all appropriate environmental analysis, including NEPA analysis. Limited Road Construction and Reconstruction The proposed rule at section prohibits road building in CRAs except under certain circumstances. The circumstances in section (b) allow for a road, whereas circumstances in section (c) are specific to temporary roads. Whenever a forest road is proposed, an EIS will be prepared (sec (e)). For all other circumstances, NEPA requirements will be used to determine the level of environmental analysis needed. Many exceptions in the proposed rule mirror the exceptions for road building provided in the 2001 Roadless Rule, but several additional circumstances allowing road building are proposed. The proposed rule at section (b)(6) includes an additional circumstance that would allow for the construction and maintenance of roads for existing and future utility and water conveyance structures. The Forest Service and the State believe this is a needed exception so Colorado s water and utility infrastructure can be properly operated and maintained. This provision is only intended to apply to existing and future authorized utility and water conveyance structures. The proposed rule at section provides the definition for utility and water conveyance structures. The definition does not include road construction or reconstruction for the construction or maintenance needed for reservoirs. In addition, the proposed rule at section (b)(7) includes an additional circumstance that would allow for the construction and maintenance of roads needed for the management of livestock grazing. The Forest Service and State recognize the importance of maintaining a viable ranching industry in Colorado. Conserving sustainable, working grasslands reduces development pressure on these lands and is a component of the Forest Service s Open Space Conservation Strategy. Another change from the 2001 Roadless Rule is the emphasis the proposed rule places on using temporary roads to the extent possible for any of the circumstances allowing for road building (sec (c) and (e)). The proposed rule also emphasizes restoration of temporary roads at section (c). The Forest Service is charged with managing the National Forest transportation system, including requirements for temporary roads to be designed with the goal of reestablishing vegetative cover on the roadway and areas where the vegetative cover has been disturbed by road construction within ten years after the termination of a contract, permit, or lease through either artificial or natural means (ref. 16 U.S.C. 1608). The Forest Service and State have considerable experience dealing with road restoration activities across many types of programs and activities. For example, the State administers a federally-funded abandoned mine reclamation program in which one principal goal is to identify environmental problems arising from abandoned mines and then to design appropriate closure methods and reclamation techniques (including restoring roads) at project sites. The State has restored over 1,500 acres of abandoned mine lands statewide since The proposed rule anticipates that lands affected will be returned to a condition consistent with the preexisting roadless characteristics (sec (c)). However, the proposed rule recognizes that restoration efforts are to proceed in an environmentally sound VerDate Aug<31> :23 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\25JYP3.SGM 25JYP3 way. In rare instances, complete obliteration and restoration (such as fully recontouring the roadway to its natural state) may cause more environmental harm than recontouring to a level that stabilizes against soil loss or other damage. For example, when the Forest Service decommissions temporary roads, restoration and obliteration are intended to make the corridor unusable as a road, stabilize it against soil loss or other damage, and reestablish the affected land s natural resource capabilities through such actions as: removing bridges and culverts and reestablishing normal maximum water flow, eliminating ditches, out-sloping the roadbed, removing ruts and berms, and recontouring road cuts. However, fully recontouring a road cut may set the stage for higher levels of soil loss due to unsuccessful revegetation on a steep slope as compared to partial recontouring incorporating a design that facilitates revegetation. Roads built for access to existing oil and gas leases as of the date of the Colorado Rule (sec (c)(3)) and roads built to accommodate coal mining exploration and coal-related surface activities in the North Fork coal mining area (sec (c)(4)) would be classified as temporary or long-term temporary roads. The proposed rule would establish a new category of road, long-term temporary road, which would have application only in CRAs. The intent is to provide a classification for roads associated with oil and gas, or coal leases that better recognizes the longer term, but non-permanent nature that is typical of such roads. Long-term temporary roads would be expected to be in place anywhere from 10 to 30 years. They would be included in the forest transportation system, ensuring they will be monitored and maintained in compliance with the terms of the applicable permit or special use authorization. However, as with other temporary roads, any long-term temporary roads constructed pursuant to an oil and gas lease or pursuant to a coal exploration license or a coal lease shall be decommissioned and the affected landscape restored when the road is no longer needed, or upon termination of the lease or license. The intent of this provision is to preserve the roadless character of CRAs to the maximum extent practicable. Except for emergency purposes, administrative use, or motorized vehicle use that is specifically authorized, all roads constructed in CRAs will be closed to motorized vehicles, including off-highway vehicles (OHVs) not authorized for the specific activity for

6 43548 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules which the road was constructed (sec (d)). Any temporary roads, including long-term temporary roads, built in a CRA would not serve as the basis for altering the management status for that CRA. (sec (c)). Colorado State Land Board Mineral Interests The proposed rule at section (b)(2) aligns with the Colorado State Land Board s current ability to develop its mineral interests that underlie NFS lands in CRAs. Access to such mineral interests would continue to be governed by operation of the standard applicable laws and regulations rather than by this rule. The Forest Service and the State are committed to exploring opportunities for land exchanges whereby the State could acquire other property interests of equal value, outside of roadless areas. Such exchanges would provide the Forest Service with unified administration of both surface and mineral interests in CRAs. Public and Safety The USDA, Forest Service, and State are committed to preserving roadless area characteristics while also protecting human health and safety. In an effort to achieve a proper balance, the proposed rule would allow for the construction of a temporary road if it is needed to safeguard public health when there is a catastrophic event, such as a flood or fire, which would cause the loss of life or property (sec (c)(2)). Locatable Minerals Development of locatable minerals is subject to the General Mining Law of 1872, as amended. Like the 2001 Roadless Rule the proposed rule does not seek to impose any limits on activities related to the exploration for or development of locatable minerals. The proposed rule at section (b)(2) allows for roads provided for by statute or treaty, which includes roads provided under the General Mining Law of 1872, as amended. The proposed rule does not affect or seek any withdrawal of the mineral estate in CRAs. Therefore, the proposed rule will not affect rights of reasonable access to prospect and explore lands open to mineral entry and location, or to develop any minerals discovered. Saleable Minerals Disposal of saleable minerals (mineral materials) is at the discretion of the Forest Service, subject to the provisions of 36 CFR 228 subpart C. The proposed rule prohibits road construction or reconstruction associated with developing new mineral material sites in roadless areas, unless this material is necessary to and accessible from roads allowed to be constructed under other provisions of the rule. Leasable Minerals Oil and Gas Like the 2001 Roadless Rule the proposed rule does not prohibit oil and gas leasing. However, prohibitions on road construction and reconstruction provided in the proposed rule (sec ), would affect Federal oil and gas leases, subject to valid and existing rights. The proposed rule (sec (c)(3)) would require future leases within CRAs include stipulations that prohibit road construction. Drilling and production may be allowed on leases in roadless areas issued after the effective date of the rule, but new roads to access sites for drilling and production will not be allowed. Oil and gas resources in roadless areas under leases issued after the effective date of the final rule may be developed by helicopter access or by other means such as directional drilling from outside the roadless areas. These provisions bar roading, but would not restrict the construction of oil and gas pipelines in CRAs where the construction of a pipeline is necessary to transport the product of an oil and gas lease on lands within a CRA that are under lease by the Secretary of the Interior as of the effective date of the final rule. The proposed rule at section (c)(3) would allow for temporary or long-term temporary road construction or reconstruction for access on and to Federal oil and gas leases that were issued before the effective date of the final rule and that allow road construction. Such access will be allowed pursuant to valid existing rights but restricted to lessees, operators, and their designated contractors; Forest Service and Bureau of Land Management (BLM) personnel and other federal and state agencies with jurisdictional authority over mineral development activity allowed under the proposed rule; and fire, emergency, or law enforcement personnel. The proposed rule does not allow the Forest Service to authorize the BLM to grant a waiver (permanent removal), exception (case-by-case exemption), modification (permanent changes), or otherwise remove stipulations prohibiting surface occupancy or road construction or reconstruction on existing leases or on any future lease in any CRAs where these stipulations occur, It is the intent of the proposed rule to maintain all no surface occupancy, controlled surface use and VerDate Aug<31> :23 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\25JYP3.SGM 25JYP3 other stipulations that restrict road construction and reconstruction on all existing leases, including those specifically tied to the 2001 Roadless Rule. Leasable Minerals Coal The proposed rule at section (c)(4) provides for temporary or long-term temporary roads associated with the exploration and mining of coal resources in roadless areas in the North Fork coal mining area on the Grand Mesa, Uncompahgre, and Gunnison National Forests. This area is identified on the North Fork coal mining area map within the DEIS for the proposed Colorado Roadless Rule. This area would be included in the CRAs and will be managed in a way that permits temporary or long-term temporary roads and other coal related surface activities associated with coal exploration and coal mining to occur (sec (c)(4)). Such temporary or long-term temporary roads will be closed to the public. The use of these roads will be restricted to coal mine and oil and gas operations, the Forest Service and other Federal and State agencies with jurisdictional authority, including emergency response, fire, and law enforcement personnel. Temporary and long-term temporary coal mine roads may be constructed for exploration drilling, resource monitoring, safety, or installation and operation of surface facilities needed to operate coal mines, including methane venting wells. In some instances roads are necessary to comply with Mine Safety and Health Administration (MSHA) requirements for mine safety, and to meet Colorado Division of Reclamation, Mining, and Safety requirements for resource monitoring. For example, roads may be constructed to facilitate the venting of coal mine methane gas. Methane is a by-product of coal mining in the North Fork area and must be removed from the mines to protect miner health and safety. The proposed rule also provides the opportunity for an oil and gas lessee to use roads for the purpose of collecting and transporting coal mine methane rather than venting the methane into the atmosphere. These activities will remain within the authorized right of way for the long-term temporary roads; no additional roads or pipelines outside the right-of-way will be constructed. Any roads constructed pursuant to a coal lease or exploration license and used for collection and transportation of coal mine methane under an oil and gas lease shall be decommissioned and the affected landscape restored when the road is no longer needed for coal mining

7 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules purposes or coal mine methane collection, whichever is later. Leasable Resources Geothermal Energy Colorado has high geothermal energy potential on NFS lands both inside and outside roadless areas. However, sitespecific information on this resource in CRAs is limited. At this time, the proposed Colorado Roadless Rule does not include a specific exemption for geothermal energy resources. The proposed rule makes no special provision for road construction and reconstruction associated with geothermal energy sources. Once additional information becomes available, the State or other parties could choose to seek a change in the rule s restrictions. Road Closures The proposed rule does not provide direction about where and when OHV use would be permissible except roads constructed under this provision would be closed to OHVs pursuant to section (d). Travel planning-related actions will continue to be addressed through travel management and individual forest plans. Tree Cutting, Sale, or Removal Forest Health In order to reduce the hazard of wildfire near communities and after careful consideration of roadless area characteristics, the proposed rule at sections (b)(1)(ii) and (c)(1) allows for forest health treatments and temporary road construction to meet needs described in Community Wildfire Protection Plans (CWPPs) or, if a CWPP is not in place, within the Wildland Urban Interface (WUI). CWPPs are collaborative agreements in which local communities identify and prioritize areas for hazardous fuel reduction treatments. The Forest Service and the State believe that allowing forest health treatments for projects identified in CWPPs or within WUIs strike the proper balance of protecting roadless area characteristics while allowing forest health and community protection needs to be addressed. Oil and Gas Pipelines After the petition was submitted the State requested that the proposed rule (sec ) restrict the construction of oil and gas pipelines through CRAs where a source or sources of the oil and/ or gas are exclusively outside CRAs. The proposed rule would not prohibit the construction of pipelines that were authorized by the Forest Service or another jurisdictional agency prior to the effective date of the final rule. The proposed rule would not restrict the construction of oil and gas pipelines in CRAs where the construction of a pipeline is necessary to transport the product of an oil and gas lease on lands within a CRA that are under lease by the Secretary of the Interior as of the effective date of the final rule. Access The Forest Service and State are committed to conserving roadless area characteristics while also providing reasonable access to public and private property and facilities. Several aspects of the proposed rule address the need for the State and/or private parties to access property and/or facilities (sec (b)(2) and (6); (sec (c)(3) and (4); sec (g)). Regulatory Certifications Regulatory Planning and Review This proposed rule was reviewed under USDA procedures, Executive Order issued September 30, 1993 (E.O ), as amended by E.O and E.O on Regulatory Planning and Review, and the major rule provisions of the Small Business Regulatory Enforcement and Fairness Act (5 U.S.C. 800). These executive orders address regulatory planning and review and require that agencies conduct a regulatory analysis for economically significant regulatory actions. Economically significant regulatory actions are those that have an annual effect on the economy of $100 million or more or adversely affect the economy or economic sectors. Because this rule is projected to have an annual effect on the economy of approximately $500 million, this proposed rule has been designated as significant and is subject to Office of Management and Budget (OMB) review under E.O This proposed rule is not expected to interfere with an action taken or planned by another agency nor raise new legal or policy issues. This action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. A regulatory impact analysis has been prepared for this proposed rule. OMB Circulars as well as guidance regarding E.O indicate that regulatory impact analysis should include benefit cost analysis and an assessment of distributional effects. We are seeking comments on assumptions, methods, and conclusions in the Regulatory Impact Analysis and Cost-Benefit Analysis. The benefits, costs, and distributional effects of three alternatives referred to as follows: the VerDate Aug<31> :23 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\25JYP3.SGM 25JYP3 proposed Colorado Roadless Rule (proposed rule), 2001 Roadless Rule (2001 rule) and land management plans (LMPs) are analyzed over a 15 year time period. As of the printing of this proposed rule, the 2001 rule is in operation. For the purpose of regulatory impact analysis, the 2001 rule represents baseline conditions or goods and services provided by NFS lands in the near future in the absence of the proposed rule. The proposed rule is programmatic in nature and intended to guide future development of proposed actions within roadless areas. The proposed rule is intended to provide greater management flexibility under certain circumstances to address unique and local land management challenges, while continuing to conserve roadless values and characteristics. Increased management flexibility is primarily needed to reduce hazardous fuels and large-scale insect and disease outbreaks, allow access to coal reserves in the North Fork coal mining areas and ski area development, and to allow access to future utility and water conveyances, while continuing to conserve roadless area values and characteristics. This proposal does not authorize the implementation of any grounddisturbing activities, but rather it describes circumstances under which certain activities may be allowed or restricted within roadless areas. Before authorizing land use activities in roadless areas, the Forest Service must complete a more detailed and sitespecific environmental analysis pursuant to the NEPA and its implementing regulations at 40 CFR Because the proposed rule does not prescribe site-specific activities, it is difficult to predict the benefits and costs or other changes of the different alternatives. In addition, the types of benefits derived from roadless characteristics and the uses of roadless areas are far ranging and include a number of non-market and non-use benefit categories that are difficult to measure in monetary terms. As a consequence, benefits are not monetized, nor are net present values or benefit cost ratios estimated. Instead, increases and/or losses in benefits are discussed separately for each resource area in a quantitative or qualitative manner. Benefits and costs are organized and discussed in the context of local land management challenges or concerns ( local challenges ) and roadless characteristics in an effort to remain consistent with the overall purpose of the proposed rule, recognizing that benefits associated

8 43550 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules with local challenges may trigger or overlap with benefits associated with roadless characteristics in some cases (e.g., forest health). Access and designations for motorized versus nonmotorized recreation is a topic raised in comments during scoping, however, the proposed rule does not provide direction on where and when offhighway vehicle (OHV) use would be permissible and makes clear that travel planning-related actions should be addressed through travel management planning and individual land management plans. Distributional effects or economic impacts, in terms of jobs and labor income, are quantified for the oil and gas and the coal sectors for an economic area consisting of five Colorado counties (Delta, Garfield, Mesa, Montrose, and Rio Blanco) using a regional impact model. Fiscal impacts (i.e., mineral lease payments) are estimated for counties where changes in mineral activity are expected to be physically located (Delta, Garfield, Gunnison, Mesa, Montrose, and Pitkin). The distributional effects associated with protecting values at risk from wildfire are characterized by estimating the number of communities-at-risk expecting to benefit from fuel treatments in roadless areas. Distributional effects or economic impacts are not evaluated for other economic sectors (e.g., timber harvest, recreation) due to evidence presented in respective resource sections suggesting that the extent or magnitude of changes in output or services are not sufficient to cause significant changes in distributional effects. Details about the environmental effects of the proposed rule can be found in the Roadless Area Conservation; National Forest System Lands in Colorado Draft Environmental Impact Statement (DEIS). Effects on opportunities for small entities under the proposed rule are discussed in the context of Executive Order regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The results of the regulatory impact analysis for the proposed rule are summarized in the following tables. Table 1 provides information related to roadless area acreage, road miles and tree-cutting. Table 2 summarizes the potential benefits and costs of the proposed rule, the 2001 roadless rule, and land management plans alternatives. Table 3 summarizes distributional effects and economic impacts of the proposed rule and alternatives. BILLING CODE P VerDate Aug<31> :41 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4725 E:\FR\FM\25JYP3.SGM 25JYP3 EP25JY08.000</GPH>

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16 43558 Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules Proper Consideration of Small Entities This proposed rule has also been considered in light of Executive Order regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The Forest Service with the assistance of the State of Colorado has determined that this action will not have a significant economic impact on a substantial number of small entities as defined by the E.O and SBREFA, because the proposed rule does not subject small entities to regulatory requirements. Therefore, an initial regulatory flexibility analysis is not required for this proposed rule. For small businesses affiliated with most industry sectors involved with activities in roadless areas (e.g., coal, oil and gas), potential opportunities increase due to easing of restrictions on road construction and tree-cutting in certain circumstanced under the proposed rule. As a result, there is little or no potential for significant adverse economic impacts to small businesses under the proposed rule relative to noaction conditions (i.e., 2001 rule). There are about 1,390 recreation special use permits currently authorized within NFS lands in Colorado of which a large majority are small businesses, and 1,066 (77%) are associated with outfitter and guide permits, some of which are likely to operate within roadless areas. However, there is little difference between alternatives with respect to recreation special use authorizations in roadless areas, because limitations on roading and tree-cutting under any alternative would not be likely to affect ability to obtain or use a recreation use authorizations. Exceptions might be special-use permit holders who rely on primitive or semiprimitive recreational settings to maintain the quality of the outdoor or remote experience. Increases in road construction and tree-cutting may have adverse impacts on permit holders in specific areas under the proposed rule, but impacts are not expected to be significant due to the small percentage (0.2%) of acreage affected (7,600 acres of tree-cutting per year) and roads constructed (21 miles per year) spread across 4 million acres of Colorado Roadless Areas. It is also noted that a significant percentage of roads and treecutting activity will occur within or near the wildland urban interface areas where primitive or semi-primitive settings may already be affected. Projected harvest volumes from roadless areas from the seven affected National Forest units are all greater under the proposed rule and land management plans relative to the noaction alternative (2001 rule). As such there is little or no potential for adverse impacts to small entity opportunities, relative to no-action, in aggregate or in the context of individual forest unit areas. Volumes are projected to be 17,700 hundred cubic feet (ccf) less under the proposed rule, relative to the land management plans, and approximately 70% of the decrease is due to volume changes on the Pike San Isabel National Forest (decrease of 12,720 ccf). All seven National Forest units have been in compliance with small business set aside shares for the period 1/1/2000 to 9/30/2005. The proposed rule, relative to the land management plans alternative, may decrease small entity opportunities for wood products businesses associated with the Pike San Isabel National Forest, recognizing that small business shares are already being met and that aggregate volumes sold from NFS lands may not change significantly under any alternative due to flat budget assumptions. Flat budgets imply that the percentage of harvest from roadless areas may change under the alternatives, but aggregate volumes across all NFS land are expected to remain relatively unchanged, on average, implying little potential for adverse impacts to small entities. For leasable minerals associated energy resources (coal, oil and gas), significant changes in output are projected across alternatives. More than 95 percent of the firms associated with these sectors can be classified as small as defined by Small Business Administration standards. Any changes in oil and gas, or coal development or production can therefore have an effect on small business opportunities in these sectors. A five-county region has been defined to model the economic impacts associated with energy resources (Delta, Garfield, Mesa, Montrose, and Rio Blanco counties). A total of 355 firms associated with oil and gas, and coal development and extraction are estimated to be located within this region, of which 95% are likely to be small (337 firms). However, energy resource sector jobs, supported annually by projected activity within roadless areas, are estimated to increase from 297 under no-action (2001 rule) to 1,481 jobs under the proposed rule. Labor income increases by a similar degree from $17.5 million to $96.2 million per year. There is a slight increase in job numbers under land management plans (1,592 jobs), relative to the proposed rule, but the VerDate Aug<31> :23 Jul 24, 2008 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\25JYP3.SGM 25JYP3 magnitude of the difference between the two alternatives does not suggest that adverse impacts will be significant if choosing between the proposed rule and land management plans. These results indicate that there is no potential for adverse impacts to small entities associated with energy resource development and extraction under the proposed rule relative to the 2001 rule, and that potential adverse impact under the proposed rule relative to land management plans are not significant. For all other economic sectors considered, changes in resource outputs are not projected to be significant to the extent that adverse impacts to small entities could occur in aggregate or within regions. Among 64 counties in the state of Colorado, 36 counties (56%) are considered to be small governments (population less than 50,000). These 36 counties are considered to be small rural counties having NFS lands within IRAs/ CRAs. Six counties are energy (coal, oil and gas) producing counties. These six counties (Delta, Garfield, Gunnison, Mesa, Montrose, and Pitkin) are expected to be the counties most likely to benefit from mineral lease payments and revenue sharing under the proposed rule and land management plans. All of these counties, with the exception of Mesa can be considered small governments (population less than 50,000), and all are forecast to receive significant increases in property tax receipts from coal, and oil and gas production, as well as state distributions of severance taxes and federal royalties under the proposed rule and land management plans relative to the noaction alternative. There are slight increases in payments under land management plans, relative to the proposed rule (aggregate payments increase from $6.8 million to $7.7 million per year). Payments associated with the Secure Rural Schools and Self Determination Act (SRSA) and Payments in Lieu of Taxes (PILT) are not expected to change significantly, or any decreases would be largely offset by increases in federal mineral lease payments. The number of at-risk-communities that may potentially benefit from fuel treatments in the wildland urban interface (WUI) areas are projected to increase under the proposed rule and land management plans relative to the 2001 rule (no-action alternative). The likelihood of tree-cutting or fuel treatments and corresponding reduction in wildfire hazard is projected to increase for a total of 90 at-riskcommunities in 16 counties with small populations (<50,000) under the